Edith Brown Weiss

INVOKING STATE RESPONSIBILITY IN THE TWENTY-FIRST CENTURYBy Edith Brown Weiss * At the beginning of the twenty-first century, the international community is globalizing, integrating, and fragmenting, all at the same time. States continue to be central, but many other actors have also become important: international organizations, nongovernmental organizations, corporations, ad hoc transnational groups both legitimate and illicit, and individuals. For the year 2000, the Yearbook of International Organizations reports that there were 922 international intergovernmental organizations and 9988 international nongovernmental organizations.1 If organizations associated with multilateral treaty agreements, bilateral government organizations, other international bodies (including religious and secular institutes), and internationally oriented national organizations are included, the number of international organizations reaches nearly thirty thousand.2 Another twenty-four thousand are listed as inactive or unconfirmed.3 Corporations that produce globally are similarly numerous. As of September 27, 2002, an estimated 6,252,829,827 individuals lived on our planet.4 Some of these individuals and groups have made claims against states for breaching their obligations, particularly for human rights violations. In short, international law inhabits a much more complicated world than the one that existed fifty or even thirty years ago. The Peace of Westphalia more than 350 years ago led to the establishment of the classic system of international law, which centered exclusively on sovereign states that had defined territories and were theoretically equal. States made international law and were accountable to each other in meeting international legal obligations. The articles on state responsibility of the International Law Commission (ILC)5 largely reflect this traditional view of the international legal system. They focus on states and the rules they use to hold each other accountable for the substantive obligations to which they have committed themselves. But the initial ILC report in January 1956 observed that it was important to do more than codify the law; it was “necessary to change and adapt traditional law so that it will reflect the profound transformation which has occurred in international law. . . . [and] to bring the ‘principles governing State responsibility’ into line with international law at its present stage of development.”6 During the almost fifty years since the United Nations General Assembly * Of the Board of Editors. The author thanks James E. Donnelly of the Georgetown University Law Center for research assistance and Jane Stromseth for comments. 1 2001/2002 Y.B. INT’L ORGS. 15. 2 Id. The Yearbook’s data base codes international bodies according to fifteen types of organizations and then groups them into five clusters: international organizations; dependent bodies; organizational substitutes; national bodies; and dead, inactive, and unconfirmed bodies. 3 Id. 4 U.S. Bureau of the Census, Projections of the International Programs Center (May 10, 2000), at <http:// www.census.gov/cgi-bin/ipc/popclockw>. 5 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), available at <http://www.un.org/law/ilc>, reprinted in JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE RESPONSIBILITY: INTRODUCTION, TEXT AND COMMENTARIES (2002). References to, and quotations of, the articles, as well as the official ILC commentaries to the articles, which appear in the Commission’s Fifty-third Report and Crawford’s volume, supra, will be identified below by article and paragraph number. 6 F. V. García-Amador, State Responsibility, [1956] 2 Y.B. Int’l L. Comm’n 173, 176, para. 10, UN Doc. A/CN.4/ SER.A/1956/Add.1. 798 2002] SYMPOSIUM: THE ILC’S STATE RESPONSIBILITY ARTICLES 799 adopted the resolution that authorized the Commission’s work on state responsibility,7 the international legal system has evolved significantly to reflect the changing nature of international society and the growing role of nonstate actors. While the Commission’s almost exclusive concern with states may have been appropriate at the beginning of its work, it does not reflect the international system of the twenty-first century. This essay reviews the articles on the invocation of state responsibility, analyzes them in historical context, and notes where they represent progressive development of international law. It then surveys a wide range of contemporary situations where individuals, other nonstate entities, and international organizations invoke state responsibility by initiating judicial or other formal complaint proceedings. The essay concludes that, in light of this contemporary practice, the articles usefully advance the codification and development of international law but do not deal sufficiently with the right of individuals and nonstate entities to invoke the responsibility of states. I. THE ILC ARTICLES ON INVOKING STATE RESPONSIBILITY The articles on state responsibility are organized into four parts, two of which directly bear on the issue of “who can claim” addressed in this essay. The key provisions are in part 3 (implementation of international responsibility) and, to a lesser extent, part 2 (the content of international responsibility). Parts 1 and 4 (the elements of internationally wrongful acts, and certain general provisions) are less relevant. Part 3, “The Implementation of International Responsibility of a State,” illustrates the articles’ central focus on states as holding rights that potentially implicate state responsibility. Chapter I of part 3, which addresses who can claim a breach of state responsibility, limits the text to invocation by states. The first article (Art. 42) is characteristic: “A State is entitled as an injured State to invoke the responsibility of another State . . . .”8 The introductory commentary to the chapter observes that the “rights that other persons or entities may have arising from a breach of an international obligation are preserved by article 33(2),”9 which is located in part 2 (articulating the consequences of internationally wrongful acts). This “savings clause” provides only that part 2 does not prejudice any right arising from a state’s international responsibility that accrues directly to an individual or nonstate entity.10 While this clause at least acknowledges today’s more complicated world, it is insufficient. The chapter on invocation should also have addressed, however briefly, the capacity/powers of persons, nonstate entities, and international organizations to invoke the international responsibility of states.11 This point will be dealt with more fully after analyzing the articles on invocation that the International Law Commission has put forward. An Overview of the Articles Chapter I (of part 3) on invocation contains seven articles, Articles 42–48. Article 42 addresses invocation of responsibility by an injured state, while Article 48 turns to invocation of responsibility by a state other than an injured state. This is an important and potentially GA Res. 799, UN GAOR, 8th Sess., Supp. No. 17, at 52, UN Doc. A/2630 (1953). Art. 42. 9 Commentary to pt. 3, ch. I, para. 1. 10 Art. 33(2). 11 James Crawford, the last rapporteur, is certainly aware that the international community includes important actors other than states. In his excellent introduction to the articles and commentary, he notes that “[t]he international community includes entities in addition to States, for example, the United Nations, the European Communities, the International Committee of the Red Cross. Clearly there are other persons or entities besides States towards whom obligations may exist and who may invoke responsibility for breaches of those obligations.” CRAWFORD, supra note 5, at 41. 8 7 However.”13 The last condition gives considerable flexibility to a court in determining whether the right has been lost and.S. by keeping the definition narrow. 7. by waiving its claim or by conduct indicating that it has “validly acquiesced in the lapse of the claim. Art. 42. the loss of the right to invoke responsibility. While the ILC may have defined invocation narrowly. as the commentary indicates. Merits (Int’l Ct. On the other hand. Arts. available at <http:// www. Preliminary Objections. the articles are likely to be applied when states make less formal claims of international law violations. WHO MAY INVOKE STATE RESPONSIBILITY UNDER THE ARTICLES Historically. criticisms. The commentary to Article 42 indicates that the term “should be understood as taking measures of a relatively formal character. 45. claims before intergovernmental human rights commissions. II. U. Art. the raising or presentation of a claim against another State or the commencement of proceedings before an international court or tribunal. Articles 43–47. respectively. 1992 ICJ REP. or before other intergovernmental bodies should suffice. Article 46 (plurality of injured states) and Article 47 (plurality of responsible states) were added in the year 2000 after the draft articles were adopted on first reading. the ability of a plurality of states injured by the same “internationally wrongful act” to make claims. 16 LaGrand Case (Ger. Articles 46 and 47 may be especially useful. 96:798 controversial distinction. 45(b). They make clear that if there is a plurality of injured states or a plurality of responsible states. 40 ILM 1069 (2001). Articles 45.12 The first three of these articles apply equally to states invoking responsibility as an injured state or as a noninjured state. Art. as well as any rights of individuals and nonstate entities to make less formal claims. and 47 deserve special note. para. or calls for other states to abide by an obligation do not by themselves qualify as “invoking” the responsibility of a state under Article 42.). the admissibility of claims (requirements concerning nationality of claims and exhaustion of local remedies).16 Definition of Invocation The articles define “invocation” narrowly. namely. for example. However. which is discussed below. the Commission may have intentionally left undisturbed the right of “noninjured” states to make less formal claims that a state has breached its international obligations. 43–47. 240 (June 26) [hereinafter Nauru]. 2001). para.org>. The articles in between.800 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 13 12 . and the rights of invocation when there are a plurality of responsible states. 15 Certain Phosphate Lands in Nauru (Nauru v. Article 45 addresses when a state may lose the right to invoke state responsibility. 46. 14 Commentaries.14 reflects the somewhat varying judgments on this point of the International Court of Justice (ICJ) in the Certain Phosphate Lands in Nauru15 and LaGrand cases. Austl. Since problems such as environmental protection usually engage more than one injured state and more than one responsible state. 2. 17 Commentaries. each one is entitled to make a claim against any responsible state subject to the limitation that no injured state may recover compensation exceeding its damages. deal with procedural aspects of the invocation of state responsibility: the obligation to provide notice of a claim. there has been considerable jurisprudential disagreement as to whether international agreements create only bilateral obligations between pairs of individual states.”17 Protests. v.icj-cij. Justice June 27. for example. Articles 43–47 generally codify international law and are relatively straightforward.). respectively. Article 60 provides that any state party may invoke a material breach to suspend the treaty in whole or in part if the “treaty is of such a character” that a material breach “radically changes the position of every party with respect to the further performance of its obligations under the treaty.”22 The third approach posits that multilateral agreements or customary international law may create obligations that run to the international community as a whole. then correlative rights and obligations exist between individual states. 1969. 1966 ICJ REP. 1980). 319 (Dec. 1991. 5433. v. 10. the Court found that it had jurisdiction because both Ethiopia and Liberia were former members of the League of Nations and thus could bring a claim against South Africa to enforce the obligations of the mandate. In the earlier Judgment on the Preliminary Objections. 20 Treaty Banning Nuclear Testing in the Atmosphere. The Vienna Convention on the Law of Treaties considers this problem in Article 60 by defining when a state party to a multilateral agreement may terminate or suspend its performance in response to a material breach by another contracting party. but the Court did not go that far in Barcelona Traction and.2002] SYMPOSIUM: THE ILC’S STATE RESPONSIBILITY ARTICLES 801 whether they may also create an indivisible whole so that the treaty obligations are to be performed in relation to every other state party to the agreement. In theory. Liber. and the state holding the right can invoke state responsibility as against the holder of the obligation. Bilateralism and Community Interest in the Law of State Responsibility. S. The 1963 Limited Test Ban Treaty20 and the 1991 Protocol on Environmental Protection to the Antarctic Treaty21 exemplify this approach. the Court found an insufficient legal interest. to its credit. 25 Art. for it makes it relatively easy to identify who has the obligation and who the right of invocation. 1962 ICJ REP. 1989). 1155 UNTS 331 (entered into force Jan. Preliminary Objections.)..18 If the first approach is accepted. 6 ( July 18) [hereinafter South West Africa]. 23 Barcelona Traction. TIAS No. But at the merits phase. 48(1)(b). 21). Afr. 22 Vienna Convention on the Law of Treaties.. if perhaps controversial. 4. 21 Protocol on Environmental Protection to the Antarctic Treaty. (Belg.19 The second approach is more complicated. 3. 24 South West Africa cases (Eth. 30 ILM 1455 (1991). 5) [hereinafter Barcelona Traction]. 5. as the International Court of Justice suggested in the Barcelona Traction case (referring to them as obligations erga omnes). indeed.23 Determining which states have the right to invoke a breach of these obligations as grounds for taking remedial or counter-measures has proved controversial. Oceans. which provides that a state may invoke state responsibility if the obligation breached “is owed to the international community as a whole. Oct. Afr. way. Bruno Simma. S. Second Phase. 60. 1963. Art. Afr. Light & Power Co. states should be able to claim a breach of these obligations even if they have suffered no direct injury. and Outer Space. see. para. 1970 ICJ REP. opened for signature May 23. v. because it posits that some agreements create rights and obligations that are indivisible for all states party to the treaty and that each state owes an obligation to every other state party to perform those treaty obligations. Afr. Spain). supra note 19. Ltd. Aug.). 19 Vienna Convention on the Law of Treaties.”25 Article 48(1)(a) concerns 18 For excellent analysis of this issue. S. South West Africa cases (Eth. .24 The International Law Commission. or whether they may in some cases reflect obligations of a state toward the international community as a whole. This theory provides an orderly approach to international law. 33 (Feb. Second Phase. Towards Relative Normativity in International Law? 77 AJIL 413 (1983) (arguing against moving away from traditional bilateralism). 32. for example. considers all three categories of obligations and does so in an innovative. in the earlier South West Africa cases ultimately declined to find that the applicant states had legal rights or interests sufficient for jurisdiction.. v. This bilateralist approach formed the basis of the traditional law of treaties and underlies the 1969 Vienna Convention on the Law of Treaties. 480 UNTS 43 (entered into force Oct. The last is handled through the mechanism of Article 48(1)(b). Liber. S. v. Prosper Weil. v. 1963) [hereinafter LTBT]. 27. The first two categories are addressed in Article 42(a) and (b).. in INTERNATIONAL LAW AT A TIME OF PERPLEXITY 821 (Yoram Dinstein ed. 12. as in the Vienna Convention on Diplomatic Relations. Art. 1964). The Commission’s distinction in Articles 42 and 48 between an injured and a noninjured state assumes that when a state violates obligations such as the prohibition on genocide or slavery and the right to self-determination. such as those governing relations between riparian states on an international watercourse. 30 Id. according to the commentary. 48). Article 42 entitles a state as an injured State to invoke the responsibility of another State if the obligation breached is owed to: (a) that State individually. or the international community as a whole. 42. a state qualifies as an injured state. para. 18. 42. Art. Notably. 1. 7502. a unilateral commitment (such as not to use a particular weapon or not to fish in a specific zone). 24. which is analyzed below. Dec. This could occur under a bilateral agreement. Article 48(1)(a) develops a different class of obligation. in this chapter the ILC does not address or even acknowledge the important role of nonstate entities and individuals in invoking state responsibility. such as between states with direct and indirect injuries. 500 UNTS 95 (entered into force Apr. The distinction replaces distinctions raised in previous Commission deliberations. 13. TIAS No.. 1961). 4. 402 UNTS 71 (entered into force June 23. supra note 20. a general rule of international law that gives rise to obligations between two states. 42) and states that have not been injured (Art.”27 which deals with material breaches of treaties. Article 42 and the Injured State The articles distinguish between injured states (Art. other states are not injured. Under paragraph (a). if it is “affected by the breach in a way which distinguishes it from the generality of other States to which the obligation is owed”29 or the breach affects “per se every other State to which the obligation is owed. Commentaries.”30 A breach of the Limited Test Ban Treaty or the prohibition on sovereign territorial claims in the Treaty on Antarctica exemplifies the latter. 29 Commentaries. 4780. It is linked to the important distinction that the ILC draws between the injured and the noninjured states. and has left the issues raised by the Barcelona Traction case and the South West Africa cases to Article 48.31 The Commission chose in Article 42 to define the injured state narrowly. But this assumption Art. 1959.26 The commentary makes clear that the definition of injury in Article 42 is “closely modelled on article 60 of the Vienna Convention on the Law of Treaties. opened for signature Apr.802 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. which derives from the traditional second category but contains elements of the third. a state is injured if the breached obligation was owed to it individually. and the breach of the obligation: (i) specially affects that State. 28 Vienna Convention on Diplomatic Relations. or a multilateral agreement in which states have specific obligations toward each other. or (ii) is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation. or (b) a group of States including that State. 31 LTBT. Antarctic Treaty.TIAS No. para. 42. 96:798 the breach of those obligations owed to a group of states and established for the protection of the collective interest of the group. para. These obligations are distinct from those covered by Article 42(b) (in which the breach must specially affect one state or radically change the position of the other states to which the obligation is owed). Arguably.28 Under paragraph (b). 27 26 . 1961. Et si l’on utilisait le concept de préjudice juridique? Retour sur une notion délaissée à l’occasion de la fin des travaux de la CDI sur la responsabilité des Etats. Wimbledon case. Great Britain. . or (b) the obligation breached is owed to the international community as a whole. 17). 8 IND. too.. 48. 33 James R. In this sense. The commentary to Article 48. Responsibility to the International Community as a Whole. v. The distinction could provide a reasonable basis for later recognition of the rights of actors other than states to invoke state responsibility in these circumstances.”34 The commentary indicates that the former category. the predecessor to Articles 42 and 48.37 32 See Brigitte Stern. then nonstate actors (who similarly may find it difficult to show direct injury) should have an easier time in asserting competence to claim for breaches of obligations owed to the international community as a whole. Italy.32 States often put down “markers” in the form of statements when they observe other states breaching international obligations. noting that this treatment was not conducive to developing public international law (rather than private international law). such as by the use of chemical or biological agents. While they may not be injured in the sense of Article 42. at 15 (Aug. 37 When Germany refused to permit a British vessel under charter to a French company to navigate in the Kiel Canal. encompasses such agreements as regional security arrangements. and Japan raised a claim against Germany for a violation of the Treaty of Versailles. argued that it was important to distinguish between the primary beneficiaries (the right holders) and those states with a legal interest in compliance.”33 Article 48 and the Noninjured State When the Commission thus decided to create a new article (Article 48) in which states could invoke responsibility for a breach of an obligation owed to the international community as a whole. This approach.S. Article 48 reflects more recent developments in international law and represents its progressive development. UK. The old Article 40. even though the states had suffered no “injury” in the traditional use of that word. Japan). in paragraph 7. 320 (2001). Fr. Under Article 48(1). had problems because not all states were equally injured. and regional agreements for protecting the environment. the development of a separate article to deal with a noninjured state is arguably misleading. states other than injured states can invoke the responsibility of another state in two contexts: if “(a) the obligation breached is owed to a group of States including that State.2002] SYMPOSIUM: THE ILC’S STATE RESPONSIBILITY ARTICLES 803 is questionable. note 765. there is precedent at the national level for the right of groups and individuals to raise claims for breaches of environmental obligations even though the group or individual has not been directly injured. and is established for the protection of a collective interest of the group. even though Italy and Japan had no monetary interest in the outcome of this particular dispute. GLOBAL LEGAL STUD. Art. regional systems for protecting human rights. The PCIJ recognized standing for all four states on the grounds that the states had a legal interest. 2001 ANNUAIRE FRANÇAIS DE DROIT INTERNATIONAL 3 (arguing against a distinction between injured and noninjured states on the grounds that all states are in some sense injured). Article 48(1)(a).35 It reflects the S. since they were all states parties to the multilateral treaty and had vessels that used the Kiel Canal. “Wimbledon” (Ger. 36 S. Crawford. 35 Commentaries. 48(1).S. As discussed later in this article. 1923 PCIJ (ser. France. James Crawford. they nonetheless suffer injury from the fact that an obligation to which they subscribe has been breached and its status could therefore be threatened unless action is taken to enforce the obligation. refers to this case in support of the text in Article 48. 1. it made an important innovation. even though they are not directly injured by that use. 303.36 in which the Permanent Court of International Justice (PCIJ) granted standing to states party to a multilateral treaty even when some of them had suffered no direct injury. J. 7. did not distinguish between states on this point and treated all states as equally injured. para. “irrespective of how or whether the breach has affected [them]. If injury is not required. 34 Art. Italy. A) No. They do so to secure the integrity of the rule and prevent its dissolution through unchallenged practice. supra note 31. 43 East Timor (Port. 33.45 The commentary to Article 25. 1996. “all States can be held to have a legal interest in their protection.” not to the international community of states as a whole. London Protocol to the International Maritime Organization Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. 102. Art.42 the Court in the East Timor case added the principle of “self-determination” as an erga omnes obligation. which bans the dumping of any material that has a radioactive level above de minimis concentrations. Nov. at <http://www. 8165. 96:798 The most interesting and presumably still controversial part of Article 48 is subparagraph (1)(b). New Trends in the Enforcement of Erga Omnes Obligations.43 Arguably.44 Thus. the Commission eschews this term on the grounds that it has sometimes been confused with obligations owed to all parties to a treaty. but sets the stage for states to invoke state responsibility for the breach of any obligation owed to the international community. where the ICJ declined to recognize the standing of Ethiopia and Liberia to seek a declaration on the illegality of South Africa’s actions in South West Africa (now Namibia). such as an obligation not to dispose of high. but also for reparation of the interest of the injured state or of the beneficiaries of the obligation that has been breached. XII(d). It does not make clear whom the latter includes and the commentary Barcelona Traction. 34. IMO. v. Annex I. 39 38 . especially in human rights and environmental protection. which encompasses portions of three oceans as defined by the Treaty.39 It permits states to raise claims regarding obligations owed to the community as a whole. the parties to the 1972 London Convention placed a moratorium in 1983 on the dumping of low-level radioactive wastes and decided in 1993 to amend Annexes I and II to ban the dumping of all radioactive wastes.. 18. para.or medium-level nuclear wastes in the oceans. opened for signature Dec. Art.). 46 Commentaries. 5.htm> (last modified Mar. 1972. inter alia. para. para. supra note 23. Antarctic Treaty. indicates that the Commission intentionally adopted the broader phrasing used in the Barcelona Traction case and subsequent international agreements. 42 Commentaries. 1995 ICJ REP. 25. Article 48 essentially reverses the Court’s position in the South West Africa cases. Id.B. 40 For analysis of compliance with and enforcement of these obligations. radioactive wastes. 36 ILM 1. which is the phrase used in the Vienna Convention on the Law of Treaties. supra note 22. supra note 24. Further support for this obligation is found in the provision of the Antarctic Treaty that bans the disposal of all radioactive wastes in Antarctica. slavery. see Karl Zemanek. para. The text is significant for what it does not say. 2001). supra note 23. Art. Art. According to the International Maritime Organization (IMO). Art. TIAS No. In the Barcelona Traction case. South West Africa. 1970 ICJ REP. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. Article 48(2) provides that any state that is entitled to invoke the responsibility of another state may ask not only for the cessation of the act and assurances that it will not recur. the Court enunciated a handful of such obligations: acts of aggression. 7. 29 ( June 30). 48.”38 Although the Court referred to these as obligations erga omnes.” Here the Commission draws upon the International Court of Justice’s famous dictum in Barcelona Traction that there is a distinction between obligations owed to particular states and those owed to “the international community as a whole” and that as regards the latter. 45 Vienna Convention on the Law of Treaties.804 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 25. para. Furthermore. the dumping of high-level radioactive wastes into the oceans is prohibited and the dumping of any other radioactive wastes requires a special permit. II. 9.”46 This formulation conforms with the view that the international community now comprises important actors other than states. Art. 53. Article XII calls for the parties to strive to protect the oceans from pollution from. Austl. IV & Annexes I. and racial discrimination. which covers breaches of obligations “owed to the international community as a whole. at 32. 1046 UNTS 120 [hereinafter 1972 London Convention]. 29. the ILC not only reflects the Court’s assertion in the Barcelona Traction case. A Brief Description of the London Convention 1972 and the 1996 Protocol. This prohibition is embodied in the 1996 Protocol to the 1972 London Convention. other obligations have also emerged. 1970 ICJ REP.40 This category of obligations is likely to grow.londonconvention. at 32.org/London_Convention. 1. Article 48 refers to the “international community as a whole. genocide. 44 Under the London Convention of 1972. in 2000 MAX PLANCK Y. where the phrase is first introduced. 21 (1997). UN L. 41 Barcelona Traction.41 As noted in the commentary. 90. and rejected including the phrase “of States. 51 Commentaries. D.” Bruno Simma. N. 54. . 48 D.47 Article 48’s extension to any state of the right to invoke state responsibility for breaches of obligations owed to the international community as a whole is a welcome development. in Article 54. Weiler.2002] SYMPOSIUM: THE ILC’S STATE RESPONSIBILITY ARTICLES 805 does not elaborate on the point. it permits practice to evolve in this area. Counterintuiting Countermeasures. Hutchinson referred to this latitude as letting loose “ ‘a sort of international vigilantism’.4/517 & Add.” and suggesting that third-state remedies under customary international law “may be appropriate in the case of a few subjects of international law under limited circumstances”). This approach. 7. In writing about the potential inclusion of international crimes in the ILC articles. Charney. see James Crawford.un. 96 AJIL 817. Moreover. 202 (quoting Bruno Simma for the term “a sort of international vigilantism.. .1 (2001). 1988 BRIT. may be the price for a system in which states will now have the right to hold other states accountable for breaching obligations owed to the international community as a whole. Art. Third State Remedies in International Law. it should nonetheless be given limited weight today. Fourth Report on State Responsibility.. A/CN. International Crimes: Inquiry and Countermeasures. The provision expands the domain within which state responsibility operates and in this sense represents progressive international legal development. 827–28 (2002).”48 The fear is that the rights conferred by Article 48(1) could be used to justify politically motivated acts or unilateral interventions by a state to enforce international law. 49 Id. however.”50 The commentary indicates that the use of “lawful measures” rather than “countermeasures” in reference to Article 48(1) is deliberate. 57. INT’L L. then many breaches could occur without the threat of a claim by any state against the wrongful act. para. be relatively few and of a status comparable to those outlined by the Court in Barcelona Traction as obligations erga omnes. See David J. with States being wrongly accused of crimes and subjected to damaging measures without good cause. which can be disposed of as such. One member wanted to delete the article entirely because it was not a core issue of state responsibility.org/law/ilc>. Standing Before International Tribunals The principles underlying Articles 42 and 48 are in harmony with trends in international judicial bodies. Y. The Commission’s language anticipates that the obligations addressed in Article 48 will. 50 Art. Hutchinson. The beneficiaries could extend. in INTERNATIONAL CRIMES OF STATE: A CRITICAL ANALYSIS OF THE ILC’S DRAFT ARTICLE 19 ON STATE RESPONSIBILITY 283. To guard against the possibility that a state might be subjected to countermeasures based on a spurious legal claim that it has breached an obligation toward the international community as a whole. UN Doc. a controversial concept that had been included in earlier versions. available at <http://www. If states were not allowed to do so. Because no collective decision or third-party decision about a breach need be made. N. Solidarity and Breaches of Multilateral Treaties. In finalizing the articles. the costs of a potentially frivolous or politically motivated claim. . Bederman’s contribution to this symposium. to the individuals who benefit from human rights treaties. 152.49 the chapter on countermeasures. limits the right of any state entitled to invoke the responsibility of another state under Article 48(1) to “lawful measures. might erode. The inclusion of the new Article 48(1)(b) was not accepted without controversy in the Commission. see also Jonathan I. the Commission agreed to delete any provision articulating the notion of international crimes. 299 ( Joseph H. rather than enhance. obedience to the rule of law. 10 MICH. poses potential dangers. 1989)). the provision leaves it to each state to determine whether a breach of an obligation owed to the international community as a whole has occurred and whether to make a claim. INT’L L. . Antonio Cassese.B. & Marina Spinedi eds. 54. for example. 101 (1989) (noting that “a substantial expansion of international law remedies to give third states a significant role. at least for now. Experience before the European Court of Human Rights suggests that states 47 For a discussion of the comment and amendment process. J.51 While the argument that Article 48 could be used for spurious ends to justify unilateral interventions is a serious one. App. 660 UNTS 195 (entered into force Jan.coe. 1976). 21 ILM 58 (1982) (entered into force Oct. 52 Convention for the Protection of Human Rights and Fundamental Freedoms. 53 The Court has issued final decisions in the cases of Cyprus v. Art. Inhuman or Degrading Treatment or Punishment (again. 34382/97 (Apr. 2000). and in other instances declared applications by states against other states admissible before the European Human Rights Commission. 4. a party to the Convention. Norway v. Greece. 21. Art. 57 International Covenant on Civil and Political Rights. The Contribution of the European Union to Public International Law. 47.806 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 25 Eur. while the Court has zealously guarded its jurisdiction. Mavroidis. Art. 33. & Yves Meny eds. third-party requests to intervene in a dispute before the Court and.coe. no further action was taken with respect to these applications. available at <http://www. REF00002880 (1968). opened for signature Dec. 10. 55 African Charter on Human and Peoples’ Rights. In both instances. App. In the second case. 22. it has recently inched toward a more welcoming stance. 59 Most complaints have been brought by individuals. 21. 13) [hereinafter Nicaragua Intervention]. 1465 UNTS 85 (entered into force June 26. 21.. which is consistent with the position taken by the ILC. see infra notes 79–90 and corresponding text. 1144 UNTS 123 (entered into force July 18. even though the invoking state. Art. 41. an optional provision). Sweden v. H.55 the International Convention on the Elimination of All Forms of Racial Discrimination. 2001). Denmark v. Application to Intervene. United Kingdom. in 1999. 2002) (discussing measures taken by the European Community in response to the Iran hostage crisis and to the human rights violations in Kosovo and noting at 176 that public international law permits actions by “not directly affected states to grave breaches of public international law”). . states can exercise their legal interest in ensuring compliance with the international agreement. Greece. 45. 999 UNTS 171 (entered into force Mar. Nov.htm>.57 and the Convention Against Torture and Other Cruel. is not directly injured. Art. see also Jochen A. 4./Hond. 1.60 While its Statute allows third-party states to intervene. 1990 ICJ REP. The ICJ has been very cautious in defining the legal interest required for interventions by third parties to disputes before it. 23. 1969). although they have rarely done so. 1998). 5. 54 American Convention on Human Rights. Netherlands v. Island and Maritime Frontier Dispute (El Sal. June 27. 11.58 In all of these examples. In the first case. 56 International Convention on the Elimination of All Forms of Racial Discrimination. 1950. Inhuman or Degrading Treatment or Punishment. 213 UNTS 221. Turkey. Under the European Convention on Human Rights. however.int/Hudoc. STUDIES IN TRANSNATIONAL ECONOMIC LAW IN HONOUR OF CLAUS-DIETER EHLERMANN 171.61 the Court granted Nicaragua’s right to intervene in a decision on the legal regime for the waters of the Gulf of Fonseca. 92 (Sept. No. 1987).int/Hudoc. 1986). Denmark v. the 1990 Land.53 Other international human rights agreements that similarly allow states to complain about another state’s violation of the agreement include the American Convention on Human Rights (for states that declare the Commission competent to hear state-to-state claims). Island and Maritime Frontier Dispute. Hudoc Reference No. 175–77 (Armin von Bogdandy. 1994.54 the African Charter on Human and Peoples’ Rights.echr.). 16. 11. Turkey. The Court also declared admissible four applications against Greece in 1968. supra note 49. 1965. (ser.56 the International Covenant on Civil and Political Rights (ICCPR) (an optional provision for states). opened for signature Dec. second. Greece. 61 Land. Art. and Ireland v. Nov. 33 ILM 960 (1994) (entered into force Nov. 25781/94 (May 10. in THE EUROPEAN INTEGRATION AND INTERNATIONAL CO-ORDINATION. 58 Convention Against Torture and Other Forms of Cruel. states have standing to make claims against other states for violations of the Convention. as amended by Protocol No. 1984. the Court has granted third-party intervention only twice.htm>. No. A) (1978). 60 For an excellent analysis of third-state remedies. 1969. 1966. Petros C. 1978). disputes brought to the Court in which a relevant third party was not included as a party to the proceedings. 96:798 do not necessarily need to be directly injured to have standing to raise claims. 1981.52 The Court has issued judgments in at least three cases in which one state has complained of violations of the Convention by another state. all available at <http://www. see Charney.R. May 11. Frowein. Greece. Dec.echr.59 Two areas of the International Court of Justice’s jurisprudence are especially relevant to the issue of invocation: first. Ct. Jurisdiction was sustained in only one of the cases. In doing so. the Court was not convinced.. the Court articulated several principles regarding intervention under Article 62 of the ICJ Statute. Id. at 130. Nig.S. involving a dispute between Indonesia and Malaysia over Pulau Ligitan and Pulau Sipadan.org>. 64 Id. para. 21).”68 In the most recent case.icj-cij. The contemporary spelling of the name of the territory is Karelia. available at <http://www. Judge Franck wrote separately to emphasize that had the Philippines met its burden in pleading the effect on its interest. 47(1). an independent state of Malaysia. and is now generally acknowledged as Sabah. 56. In the Nauru case almost forty years later. 35. para. however.2002] SYMPOSIUM: THE ILC’S STATE RESPONSIBILITY ARTICLES 807 the Court permitted Equatorial Guinea to intervene in the boundary dispute between Cameroon and Nigeria to protect its legal interest in the maritime boundary between the two.66 the International Court of Justice declined to accept jurisdiction in a claim brought by Italy because.). finding that its interest in sovereignty over North Borneo is contrary to the right of self-determination held and exercised by the people of that territory and is therefore barred by international law. v. id.. 2001).62 In the most recent case. 68 Art. if it had accepted the case. 47.65 Later. In the Eastern Carelia case. para. It reached this decision even though Portugal maintained 62 Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. The International Court of Justice has addressed its jurisdiction in at least three disputes involving third countries that were not parties before it. 65 Status of Eastern Carelia. the PCIJ declined to issue an advisory opinion on the interpretation of a bilateral treaty in a dispute between Finland and Russia over the status of East Karelia. Application to Intervene (Int’l Ct. Specifically. paras. Fr.. Justice Oct. in the classic case of Monetary Gold. Before making this finding. but also to the reasons necessary to constitute the dispositif. id. 1923 PCIJ (ser. 15. 90). 66 Monetary Gold Removed from Rome in 1943 (Italy v. para. supra note 43.). and Albania was not before the Court. the responsibility of each State may be invoked. 1999 ICJ REP. the Court reiterated that claims for intervention do not require a jurisdictional link to the parties. supra note 15. Application to Intervene. the Court declined to accept the Philippines’ application to intervene.. North Borneo is the area formerly known as the British North Borneo Co. he would still deny intervention. id. the Court would have been required to decide whether Albania had wronged Italy. 82. para. Judge Oda questioned how the Court could know whether its decision in the case would affect the Philippines’ rights unless that state were allowed to intervene and present its arguments. and furthermore. B) No. when the League of Nations requested an advisory opinion. Malay. 1954 ICJ REP.69 the Court again declined jurisdiction on the grounds that it would have to rule on the lawfulness of the conduct of Indonesia.” Land and Maritime Boundary Between Cameroon and Nigeria. 19 ( June 15). 67 Nauru. it cannot be said that this object is not a proper one: it seems indeed to accord with the function of intervention. at 6 ( July 23). The Philippines uses the term North Borneo (rather than Sabah) because its claim of sovereignty conflicts with that of Malaysia. supra. 1029 (Oct.).63 finding that its judgment would not actually influence the Philippines’ claim to North Borneo. The ILC’s Article 47 reflects this holding in providing that if “several States are responsible for the same internationally wrongful act.67 the Court accepted jurisdiction even though Australia argued that any decision would involve the rights and obligations of the other two states that had been jointly designated by the United Nations in 1947 as the administering authority over the territory of Nauru. which was not a party to the proceedings. para. While the Philippines argued that an ICJ decision could affect the status and interpretation of various agreements regarding its sovereign rights in North Borneo. para. id.. Advisory Opinion. that the claim need not even concern the same subject matter as the principal case before the Court. 48–55.. because Russia had refused to participate in the proceedings and did not recognize the jurisdiction of the League or the Court. U. UK. and the Court broadened this category by allowing interests to relate not only to the dispositif of the case. . 63 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon. East Timor. supra note 61. the Permanent Court of International Justice addressed it once. Separate Opinion of Judge ad hoc Franck. 14 (quoting Nicaragua Intervention.. 69 East Timor. the Court quoted its opinion in Nicaragua Intervention: “So far as the object of [a state’s] intervention is ‘to inform the Court of the nature of the legal rights of [that state] which are in issue in the dispute’. 23.64 In dissent. All that is required for intervention is that a legal interest could be affected by the decision in the case. 5. 1 ( June 22. Defenders of Wildlife. arguably brings it closer to Article 42 on the injured state. Morton. to use by the group of an environmental amenity. 73 Id. 1991. with Friends of the Earth v. the Constitution permits actions on behalf of a group of individuals so long as individuals in the group or the group itself suffers injury that is traceable to a specific act and can be redressed by judicial action. seek civil enforcement orders. Compare Lujan v.70 Although not constitutionally required. the Court has been quite scrupulous in insisting that it not take jurisdiction over disputes in which the legal interests of a state not a party to the proceeding would be adjudicated. 1395 claims were filed and 833 decisions rendered for the year ending in June 2001. 338(4) (NZ). 528 U. 316(1).govt. See. as in the Nauru case.72 Rather. In practice. 75 Report of the Registrar of the Environment Court for the 12 Months Ended 30 June 2001. the decisions issued over a four-year period more than doubled. 72 Resource Management Act. even when the invoking state was not “injured” (as defined by the Commission).nz/environment/news. it generally extends. 96:798 that the right that Australia had breached (the right of self-determination) was a right erga omnes.S. In light of the cautious jurisprudence of the International Court of Justice in delineating the “legal interest” required for third parties to intervene and in determining whether the “legal interest” of a state not a party to the proceeding would be adjudicated. 555 (1992) (finding that indefinite plans to visit other countries cannot lay the basis for injury). in addition to seeking any of the aforementioned judicial remedies. 504 U. concerning the breach of an obligation owed to a group of states established for the collective interest of those states. 74 Id. 167 (2000) (finding that avoidance by local residents of a river that they would use but for fear of contamination is sufficient to establish an injury). Laidlaw Envtl. sec. legislation authorizes individuals to bring claims before the New Zealand Environment Court without a requirement of personal injury.75 Thus.74 The court has become increasingly active. if only to the use of an amenity shared with others. While 1224 claims were filed and 349 formal decisions issued for the year ending in June 1997. Australia.html>. 2. can issue orders to abate the offending actions. Standing in National Courts The ILC’s approach to the nature of the right required to invoke responsibility is also in keeping with practice in some national systems. In New Zealand. 405 U. although the requirement of an injury.S. Among the most on-point precedents supporting the text of the ILC’s Article 48(1) are those of the Environment Court in New Zealand and the Land and Environment Court in New South Wales. or even in some circumstances pursue criminal enforcement.71 This interpretation is analogous perhaps to Article 48(1)(a). In the United States. the International Law Commission deserves commendation for broadening a state’s right to invoke the responsibility of other states for breaches of obligations to the international community as a whole. §322. available at <http://www. and all sections state that any person at any time may initiate these proceedings. e. Servs. the interest injured must also fall within the zone of interests protected by the statute.. the definition of injury to the group has varied over the years and with different court jurisdictions. Local and state authorities.courts.808 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. allowing “any person representing some relevant aspect of the public interest” to appear and call evidence before the court). Standing requirements in domestic courts for persons and groups wishing to enforce national legislation vary widely among countries. Sierra Club v. 727 (1972) (dismissing an action due to lack of a recognized interest).73 Individuals may request declarations for the interpretation of rights and duties under the Resource Management Act. 2002). but it has also been sensitive to the need that states not escape accountability because several are responsible. §§311(1). §274(1) (as amended in 1996.g. 71 70 . for example. individuals represent the public interest in compliance with the law.. Each section provides for a different form of citizen enforcement.S. Thus. however. 22. they should have done more to recognize the expanded universe of participants in the international system entitled to invoke state responsibility. it receives submissions from both the individual and the targeted state and determines whether a violation has occurred. 999 UNTS at 302.lawlink. The widespread existence of lex specialis contributes to the development of international law regarding the invocation of state responsibility. GA Res. and foreign investor protection.78 III. supra note 56. 1. the articles contain useful progressive elements regarding the nature of the interest required to invoke state responsibility.79 the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women. 1. Three areas illustrate the significant role of individuals and nonstate entities in invoking state responsibility before international dispute settlement bodies: human rights. Art. 1999) (entered into force Dec. the court reported a 15 percent increase in the number of cases submitted in 2001 over the year 2000. supra note 58. Australia. Inhuman. From its beginning in 1977 through August 27. 6. Art.gov.).77 Again.81 and the International Convention on the Elimination of All Forms of Racial Discrimination. 2002.W. NONSTATE ACTORS AS INVOKING STATE RESPONSIBILITY As the foregoing discussion of Article 48 suggests.S.) (emphasis added). international agreements provide for individual complaint procedures. 79 International Covenant on Civil and Political Rights. 2000) [hereinafter Optional Protocol to Discrimination Against Women Convention].S. environmental protection. the ILC articles focus on the rules by which states can invoke the responsibility of another state for breaching its international obligation. If the Committee finds the petition admissible.. As indicated at the outset. annex (Oct. 81 Convention Against Torture and Other Forms of Cruel. supra note 57.au/ lec/lec. However.W. . 77 LAND AND ENVIRONMENT COURT OF N. 1980. Art.nsw.”76 In the category of cases involving environmental planning and protection. Within the United Nations system. 78 The suits that citizens can bring for breaches of the act lead to court orders. 1249 UNTS 13. 54/4. or Degrading Treatment or Punishment.nsf/pages/courtperformance> (visited Aug. 82 International Convention on the Elimination of All Forms of Racial Discrimination. 12. four international agreements give individuals or groups of individuals the right to complain about violations of the protected rights: the First Optional Protocol to the International Covenant on Civil and Political Rights. 80 Convention on the Elimination of Discrimination Against Women. and (in slightly abbreviated form) the Heritage Act. 22. the Committee 76 This language appears in both the Environmental Planning and Assessment Act. In many instances. §123 (N. 14. First Optional Protocol. §153 (N.80 the Convention Against Torture and Other Forms of Cruel and Inhuman Punishment. this provincial experience provides precedent for permitting actors to make formal claims in the absence of injury in order to protect community interests in the environment. whether or not any right of that person has been or may be infringed by or as a consequence of that breach.W. which means that about 230 submissions were received. at 17. But the world has evolved considerably over the last four decades since the Commission began its deliberations. 1979.S. Optional Protocol. 2002). under the Environmental Planning and Assessment Act and the Heritage Act of New South Wales. Human Rights Various international and regional fora recognize that individuals have standing to make claims against states for violations of human rights. ANNUAL REVIEW 2001. opened for signature Mar. any person may bring proceedings before the Land and Environment Court seeking “an order to remedy or restrain a breach of this Act.2002] SYMPOSIUM: THE ILC’S STATE RESPONSIBILITY ARTICLES 809 Similarly.82 The First Optional Protocol to the ICCPR gives individuals the right to make written representations to the UN Human Rights Committee for violations of the Covenant by those states that have accepted the Protocol. 1977. available at <http://www. which are comparable to injunctions and restitution. ch/html/menu2/8/stat4. In 1999 parties to the Convention on the Elimination of Discrimination Against Women adopted an Optional Protocol (based on the ICCPR model) that gives individuals or groups of individuals the right to submit written communications “claiming to be victims” of violations of any of the rights in the Convention by states that have accepted the Protocol. and June 25.83 As of August 27.858 applications. available at <http://www. The numbers have been growing each year.88 At the regional level. Art.unhchr. 27. individuals have used this procedure frequently. individuals can also bring claims for human rights violations. Social and Cultural Rights. with one case pending. although not directly to the Inter-American Court of Human Rights. individuals must initially file a complaint with the InterAmerican Commission on Human Rights. which would similarly give individuals the right to complain of a breach of the Covenant by a state party to such a protocol. One might also analogize to the inter-American system and argue that the prosecutors at the Tribunals for the Former Yugoslavia and for 83 Statistical Survey of Individual Complaints Dealt with by the Human Rights Committee Under the Optional Protocol to the International Covenant on Civil and Political Rights (Aug. 87 Statistical Survey of Individual Complaints Considered Under the Procedure Governed by Article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination ( June 25.echr. 2002). and 242 cases were “living” or pending. the evidence is even more persuasive that individuals have become important actors in invoking state responsibility. .htm>.87 The committee expressed its views on the merits in 13 of the cases. In the inter-American system.393 individual communications complaining of violations of the European Convention on Human Rights. 2. the Committee had expressed its views on the merits in 403 cases. and the Committee is functioning increasingly as a forum for adjudicating human rights disputes. took decisions in 9728.ch/ html/menu2/8/stat2. the Committee Against Torture had registered 200 communications against twenty-one countries.int/Fr/InfoNotes AndSurveys.htm>. 96:798 registered 1100 communications concerning seventy states. APERÇU 2001. The European Court of Human Rights in the year 2001 received 31. As of May 30.85 The UN Committee on Economic. supra note 54. 2002).unhchr. The Convention Against Torture and the International Convention on the Elimination of All Forms of Racial Discrimination both create an individual complaint procedure. 89 EUROPEAN COURT OF HUMAN RIGHTS.84 The numbers of submissions are increasing annually.89 These numbers far exceed the number of state-to-state complaints.coe. 10. respectively. Art.ch/html/menu2/8/stat3. In 1999 the Court registered 8400 applications and in 2000. which states can opt into.htm>. 2002).86 The Committee on the Elimination of Racial Discrimination considers complaints filed by individuals or groups of persons claiming to be victims of racial discrimination by a state that is a party to the Convention and has declared that it recognizes the committee’s competence to receive individual complaints. Social and Cultural Rights has considered developing an optional protocol to the International Covenant on Economic. Of these.unhchr. 88 Id. 84 Id.810 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. and rendered judgments in 888 cases. supra note 80. Under the American Convention on Human Rights. at <http://www. which can forward it to the Court. 2002. Inhuman or Degrading Treatment or Punishment (May 30. 85 Optional Protocol to Discrimination Against Women Convention. 44. the Court registered 13. at 29. at <http:// www.90Again. 2002. 86 Statistical Survey of Individual Complaints Dealt with by the Committee Against Torture Under the Procedure Governed by Article 22 of the Convention Against Torture and Other Cruel. Between 1982.482. when the procedure went into effect. 90 American Convention on Human Rights. the committee concluded 21 cases against seven countries. while it rendered 177 and 695 judgments in these years. at <http://www. with 46 cases pending.htm>. 2002. C. & Dec. . these cases relate to the extension of state responsibility to individuals acting for the state or under color of state authority. Karadzic. gives nongovernmental organizations and individuals the right to complain that one of the three states party to the agreement “is failing to effectively enforce its environmental 91 Both Tribunals were established by the Security Council under Chapter VII of the Charter of the United Nations. at 15. §1350 (1988)). at 29.Supp. 1987) (concluding in suit brought by Argentine citizens in the United States against former Argentine general that claims of official torture. Mugabe. Suarez-Mason.S.94 While on the one hand. the U. Art.Y. For an overview of the Tribunal for the Former Yugoslavia.2002] SYMPOSIUM: THE ILC’S STATE RESPONSIBILITY ARTICLES 811 Rwanda are similarly bringing claims on behalf of individuals against states. & Dec.Supp. 28 U. The Statutes of the two Tribunals allow the prosecutor to initiate an indictment on his own. and summary execution all constituted “international tort” claims that could be adjudicated under the Alien Tort Statute). Environmental Protection Developments in international environmental law have begun to mirror those in human rights. 93 Tachiona v. it appeared to satisfy the criteria for being a state. UN Doc. even in the face of contrary interpretations of treaty obligations by the U.D. government’s motion to reconsider the decision. 18. UN SCOR. 1531 (N. 955. The North American Agreement on Environmental Cooperation.Supp. individuals are not precluded from providing information in order to initiate an indictment).91 At the national level. Karadzic. 25 DENV. S/INF/49 (1993) (establishing the Tribunal for the Former Yugoslavia). & POL’Y 305 (1997) (indicating that the Tribunal is an improvement over the Nuremberg Tribunal. they reveal the growing trend to open courts to individuals claiming breaches of international obligations. 49th Sess.. see Michael P. 32 ILM 1192 (1993). 92 Kadic v. Karadzic. or on the basis of information received from any source (although the Statutes set a preference for information from states or formal organizations.3d at 245. courts. executive branch. INT’L L. could violate the law of nations.” In Kadic v.D. Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991. one of the most publicized cases. 2d 259 (S. including having sovereignty over land and people.S. Art. Res.N. Res. 94 The case addresses the issue of who can be sued.92 In 2002 a federal district court declined to recognize jurisdiction over Robert Mugabe. and several senior government officials. 672 F. for alleged acts of torture and terrorism. and not individual actions.Y. UN Doc.N. UN SCOR. 2001). the African National Union–Patriotic Front. 955.S. see also Forti v. on the other hand. 2002). the president of Zimbabwe..S. Between 1 January 1994 and 31 December 1994. 827.S. although Srpska was never formally recognized as a state. The appellate court reversed. supra. but it also demonstrates the court’s receptivity to letting individuals try to hold officials responsible for violations of international law. The Alien Tort Claims Act gives U. albeit in an as yet modest way. even if only in their simultaneous role as leaders of a nongovernmental organization. A Critique of the Yugoslavia War Crimes Tribunal..S. 169 F. J. Cal. Court of Appeals for the Second Circuit recognized the right of victims of certain atrocities allegedly committed by Radovan Karad!i" to bring international legal claims before U. federal courts original jurisdiction over tort claims made by aliens for torts committed in violation of the law of nations (or a treaty of the United States).D. but did find that they could be served in their capacity as leaders of their political party. 70 F. albeit against individuals acting for the state or under color of state authority. S/INF/50 (1994) (establishing the Tribunal for Rwanda). SC Res. courts in the United States have recognized the right of individuals to bring claims for actions other individuals allegedly took as officials in violation of the “law of nations. 2d 383 (S. The U.93 By doing so. the court indicated that it construed “immunity” narrowly. The court also suggested that Karad!i" could be liable for other crimes as the president of the Republika Srpska because. 48th Sess. 186 F. 17. war crimes. genocide. reprinted in 33 ILM 1602 (1994). and some crimes against humanity are violations of the law of nations. prolonged arbitrary detention. 70 F.. Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States. but that it is far from a perfect system). finding instead that certain individual actions.S. Scharf. The trial court had dismissed for lack of subject matter jurisdiction because it held that only state actions. SC Res.3d 232 (2d Cir. negotiated as a parallel agreement to the North American Free Trade Agreement (NAFTA). District Court for the Southern District of New York denied the U. 1995) (the court found subject matter jurisdiction under the Alien Tort Claims Act. annex to SC Res. with a sharp increase in their number in the last few years.pca-cpa.S. incorporated under the laws of Alberta. The PCA’s new Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment were unanimously adopted on June 19. 97 NAAEC. 96 AJIL 773 (2002) (introducing this symposium and providing details of historical development of the ILC’s work). again by a two-thirds vote. Art. Individuals or nonstate entities concerned about breaches of environmental or natural resources law can now file complaints against a state and seek arbitration at the Permanent Court of Arbitration (PCA). The International Centre for Settlement of Investment Disputes (ICSID) provides a mechanism for states and foreign investors to resolve their disputes voluntarily. Article 14 provides. 99 Citizen Submissions on Enforcement Matters. the Commission on Environmental Cooperation had received thirty-five submissions on enforcement matters since its inception in 1995. 32 ILM 1480 (1993) [hereinafter NAAEC]. 2002. as claims brought by a state for injury to its nationals. supra note 95. Crook. to make it publicly available. if the Secretariat finds that the submission: (a)is in writing in a language designated by that Party in a notification to the Secretariat. The Secretariat may consider a submission from any non-governmental organization or person asserting that a Party is failing to effectively enforce its environmental law. however. by a two-thirds vote. 18.100 They are modeled after the UNCITRAL Arbitration Rules.101 At the time. For an informative analysis of the commission’s work on these submissions. particularly in the area of foreign investment. may recommend the preparation of a factual record to the council. . and (f )is filed by a person or organization residing or established in the territory of a Party. 15. state responsibility generally meant the substantive rules for protecting aliens. Notice that nowhere in Article 14 is the person or organization making the submission required to demonstrate injury. Introduction and Overview. 1999). and often by individuals. As of June 30. Optional Rules for Arbitration of Disputes Relating to Natural Resources and the Environment ( June 29. can then order this record prepared and has the option. SEM–99–001 (Oct. Markell. foreign investor claims were viewed largely in terms of diplomatic protection. available at <http://www. 2001).812 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol.cec. 98 Citizen Submissions on Enforcement Matters. and after considering both. 2002).”95 This provision has also been interpreted to give individual corporations the right to lodge a complaint..99 Most of the submissions were presented by several organizations. 2000.cfm?varlan=english> (visited Oct. 100 Permanent Court of Arbitration. supra note 98. including any documentary evidence on which the submission may be based. 1993. (d)appears to be aimed at promoting enforcement rather than at harassing industry.. at <http://www. (c) provides sufficient information to allow the Secretariat to review the submission. the secretariat of the commission requests a response from the state. the secretariat is not allowed to proceed with a submission if the party’s response indicates that the matter is the subject of a pending judicial or administrative proceeding. More than fifty contracting parties to the ICSID Convention have introduced legislation that 95 North American Agreement on Environmental Cooperation.3(a) of the NAAEC. the secretariat determined it would not proceed with this submission because the dispute was also the subject of a NAFTA Chapter 11 claim.-Mex. Investor Claims When the International Law Commission began its work.org/citizen/index.org/BD/>. investors have increasingly resorted directly to international dispute settlement procedures for breaches. 96 Methanex Submission. (e) indicates that the matter has been communicated in writing to the relevant authorities of the Party and indicates the Party’s response. REV. Under Article 14. 101 Daniel Bodansky & John R. 96:798 law. see David L. alleged that California and/or the United States had failed to enforce environmental regulations. 8.98 It had prepared and released factual records in three cases and was in the process of preparing seven other factual records.96 In response to a qualifying submission.97 As of October 8. 2001. 12 GEO. in pertinent part: 1. 545 (2000). if any. Sept.org/citizen/index.cfm? varlan=english>. The council. U. INT’L ENVTL. The Commission for Environmental Cooperation’s Citizen Submission Process. Art. in which Methanex Corp. 14.-Can. (b)clearly identifies the person or organization making the submission. Within the last decade or two. Canada. available at <http://www.cec. 8–14. L. . 108 Id.htm> (visited Sept. C–179/94. which thus expanded the range of acts for which individuals could seek reparations under Brasserie du Pêcheur. Colom. the Court announced that individuals could seek reparations for any serious breach of international law that infringed their rights.109 In Dillenkofer.M.104 Eight cases have been brought pursuant to the NAFTA’s provisions on dispute settlement. 1965. 17–18.gov/tcc> (visited Aug. As of December 2000. Mar. including the NAFTA.110 More recently. Secretary of State for Transport ex parte Factortame Ltd. 1994.sice. opened for signature Dec. 22.. European Community Courts For over a decade.htm>.S. and a causal link existed between the state’s failure to implement the directive and the damage suffered.export. 103 Rigo.4(a) (adopted by Mercosur\CMC\Dec No 11/93).ar/0-7/Mercosur/decisiones/ 1993/d9311. [1996] 1 C. the United States had signed forty-five bilateral investment treaties.2002] SYMPOSIUM: THE ILC’S STATE RESPONSIBILITY ARTICLES 813 permits ICSID arbitration or conciliation.105 thirty-seven of which were in force. available at <http://www. C–189/94. List of U. 6090.106 The standard provision in these treaties allows an individual investor to use the courts or administrative tribunals of the party involved in the dispute. 104 Rigo. Francovich v. 1994.org/Trade/63_E/63E_TOC. 1994. 1120.S. the European Court of Justice has acknowledged the right of individuals to seek reparations from states for breaches of the Treaty Establishing the European Economic Community.mecon. Treaty on Free Trade. 34 ILM 381 (1995). 32 ILM 289 (1993).R. 1991 ECR I–5357. Germany. Trade Compliance Center. 106 U. 105 U. June 13. TIAS No. Art. and to obtain domestic interim injunctive relief during the arbitration process. . at <http://www. 1992. 575 UNTS 159. supra note 102.108 Subsequent cases have expanded the scope of this decision. 2002). 109 Joined Cases C–46/93 & C–48/93.M. a decision in the Court of First Instance of the European Communities significantly expanded the possibilities for individuals to challenge the Community’s 102 Andres Rigo. Investors have also been able to file complaints in national courts or administrative tribunals pursuant to bilateral investment agreements. 2001). the Court permitted Italian citizens to seek reparations for lost wages caused by the alleged breach of Italy’s obligation under the Treaty to implement a European Community directive providing for minimum protection for workers in case of employer insolvency. 2002). In 1996 in Brasserie du Pêcheur. in May 2002. Art.sagpya. In the landmark 1990 Francovich judgment. ICSID has received ninety-three requests for arbitration and three requests for conciliation.107 The Court set forth three conditions permitting individual recovery: the directive was intended to convey individual rights. ICSID: An Overview. see Convention for the Settlement of Investment Disputes Between States and Nationals of Other States.103 Since its beginning. 18. 107 Joined Cases C–6/90 & C–9/90.L. 17. the content of the rights could be determined solely from the directive’s provisions. 27. 12. available at <http://www. available at <http:// www. Brasserie du Pêcheur SA v. 40. in INT’L ARB. 1996 ECR I–4845. 8–17. The rate of submissions for arbitration has increased from an average of one per year to one per month. Art. 9. Dec. Arts. & C–190/94. Energy Charter Treaty.state.gov. Jan. to resort to ICSID or other agreedupon international arbitration procedures. Dep’t of Commerce. & The Queen v. The four are the North American Free Trade Agreement. Bilateral Investment Treaties Through December 2000 ( Jan. para. 889 (1996) (both Germany and Britain had failed to repeal economic regulations that conflicted with certain aspects of Community law). [1996] 3 C.-Mex.L. Germany. 17. C–188/94. Protocolo de Colonia para la Promoción y Protección Recíproca de Inversiones en el MERCOSUR.-Venez.R. Dep’t of State. 469 (1996). REP. Dillenkofer v. 110 Joined Cases C–178/94. the Court ruled that a country’s failure to implement a Council directive in a timely manner was per se a serious breach of international law.102 More than fifteen hundred bilateral investment treaties and four multilateral treaties. Winter 2002 (Fulbright & Jaworski) (also available in mimeo from author).asp>.S.. supra note 102. 26(4).gov/e/eb/ris/fs/1139. Italy.. designate ICSID as a forum for resolving disputes. 1996 ECR I–1029. For the ICSID Convention. 117 GA Res. whether or not other persons are also so affected. created a Committee on Applications for Review of Administrative Tribunal Judgements to receive requests from staff members (or the UN Secretary-General or a member state) for the International Court of Justice to review a judgment of the Administrative Tribunal and issue an advisory opinion on it.. which Germany as the national state of the detained person could raise as a diplomatic protection claim before the Court. 2002). Aceves. Apr. . nonetheless. on the advice of the International Court of Justice. SZASZ. 96:798 measures of general application. individual UN staff members no longer have this “indirect” access to the Court. 96 AJIL 210 (2002). 19. 46 P. the ICJ reviewed three such cases. this procedure. 115 See William J. A/3116 (1955). Introduction to Part III. of course. though not as a matter of formal law. supra note 16. the Court came close to giving effect to individual rights in the LaGrand case and in earlier advisory opinions on matters regarding UN staff members. The committee and the review procedure were abolished in 1995. Nonetheless. App. do not have standing before the ICJ.113 Germany further claimed that the right of individuals to be informed of their rights without delay was an individual human right. when regulation did not apply solely to that company and caused no unique damage). SELECTED ESSAYS ON UNDERSTANDING INTERNATIONAL INSTITUTIONS AND THE LEGISLATIVE PROCESS 239 (Edith Brown Weiss ed. However. 523 U. Commission (May 3. in PAUL C. affect domestic court practice in the United States.117 In the 1970s and 1980s. 2002). effectively gave them standing to have the Court review their case.114 The Court’s recognition that the Vienna Convention created individual rights could. the ICJ found that the Vienna Convention on Consular Relations.3d 703 (Okla. it could not provide a judicial remedy where the petitioner had initially failed to raise the issue. Oklahoma. to conclude that the procedural requirements of the state statute barred the petitioner’s claim. The court relied on Breard v. if it stands. at 30. created individual rights. 2001). Supp. 957. While individuals.. 10th Sess. 596 UNTS 261 (entered into force Mar. Since the procedure was abolished. UN Doc.S. 112 Vienna Convention on Consular Relations. The International Court of Justice Only states can bring claims against other states in the International Court of Justice for the breach of international obligations.. para. In LaGrand. 6820. Jégo-Quéré & Cie SA v. Crim. and reflects the broader international trend to expand the definition of those who have a legal interest in the performance of international obligations. 118 See Edith Brown Weiss. 77. para. The decision. indicated that whether or not the Vienna Convention created individual rights. and it rejected petitioner’s argument that relief was unavailable at the first application because the LaGrand case had not yet been decided. 78. 116 Valdez v.116 In the advisory opinions regarding UN staff members. While the requests formally came from the committee of the General Assembly. the Court in effect. 1963. paragraph 1 of the Convention. the procedure followed was for the applicant to address them to the United Nations Secretary-General. 2002.int/common/ recdoc/indexaz/en/t2. could open European Community courts to many more individual claims. No. 24.112 in Article 36. Case Report: LaGrand (Germany v. Greene.htm> (French fishing company challenge to European Community regulation prohibiting use of certain type of fishing net. heard the claims of individuals. 371 (1998). the European Community courts have required that individuals show unique injury specific to themselves to challenge measures of general application. 113 LaGrand. The Jégo-Quéré decision gives standing to any individual who is immediately and directly affected. available at <http://curia. 1967).115 In response to the LaGrand case. 19. through a thin veil. who then forwarded them unchanged to the Court. the court’s decision on May 1.814 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol.eu. 114 Id.118 111 Case T–177/01. TIAS No. the Oklahoma Court of Criminal Appeals stayed the execution of a Mexican national in September 2001. United States). but the Court noted that since it had found that the United States had violated the rights of the LaGrand brothers under Article 36. In 1955 the United Nations General Assembly. UN GAOR.111 Until now. it did not need to consider the additional argument. The Commission’s overall approach to individuals and nonstate entities was to leave this matter to lex specialis rather than to enunciate a general rule. Other multilateral development banks also have review mechanisms.and MIGAsupported projects. Individuals. In keeping with this approach. 2002).”122 The blanket Article 55.htm> (visited Aug. B. 120 Art. The commentary to Article 33(2) adds that in such cases. arising from the international responsibility of a State. little wording in the articles directly bears on the topic. para. The Compliance Advisor/Ombudsman (CAO). at <http:// www. 12. and foreign investor protection and the experience in the European Community point in the same direction. 12. OP 17. and corporations can turn to a growing number of fora in which to lodge formal complaints invoking state responsibility for the breach of international obligations. Annexes A. 12. at <http://www. 33(2) (emphasis added).org/ipn/ipnweb. and in this sense are drafted consistently with obligations running to nonstate actors. 12. an intergovernmental organization. See Compliance Advisor Ombudsman. Operations Evaluation Department. environmental protection. twelve of which led to panel investigations.2002] SYMPOSIUM: THE ILC’S STATE RESPONSIBILITY ARTICLES 815 The data from the quite different fields of human rights. but not in the articles of part 3 on invoking state responsibility. Further. at <http://www.org/institutional/ manuals/opmanual.html> (visited Sept. Office of Evaluation and Oversight. The Office of the Compliance Advisor/ Ombudsman (CAO) for the International Finance Corporation (IFC) and Mutual Investment Guarantee Agency (MIGA). 2002). receives complaints from individuals and communities adversely affected by IFC.55.iadb. 33. 2002). the ILC referred to the issue in part 2 (which addresses the content of the international responsibility of states). As a result.org/OED/default.”120 Thus. which may accrue directly to any person or entity other than a State. See 2 WORLD BANK. the article recognizes that the primary rule may provide rights for nonstate entities. Center for International Environmental Law.org> (visited Aug. As of June 2002. The World Bank Inspection Panel and similar undertakings indicate growing efforts to provide means to civil society to hold international intergovernmental organizations accountable for their actions.cao-ombudsman. available at <http://wbln0018. Office of the General Auditor. although none as formal and independent as the Bank’s Inspection Panel. .asp> (visited Aug. nongovernmental organizations.119 IV.ciel. Some wanted to address the issue.adb. See World Bank. available at <http:// wbln0018. 122 Id. 2002). Lest there be any doubt. which provides that part 2 “is without prejudice to any right. Their use of these fora is accelerating.org/OGA/default. Art. 2002). nongovernmental organizations and individuals have the right to complain to the World Bank Inspection Panel that the World Bank. adds more generally that the articles do not apply “where and to the extent that . 12. whether and to what extent entities other than states may invoke responsibility varies depending on the primary rule involved. and paragraph 2 makes this clear. the articles in part 2 do not refer to the actor to whom the obligation is due. 2002). OPERATION MANUAL.adb. the panel had received twenty-six requests. “Lex specialis” in part 4 (general provisions). sometimes rapidly. the commentary also notes that “[t]he articles do not deal with the possibility of the invocation of responsibility by persons or entities other than States.”121 and refers to human rights treaties and bilateral or regional investment protection agreements. has failed to follow its procedures in its project financing and that this failure has directly harmed them or their interests. Summary of Requests for Inspection. Asian Development Bank. 2002). available at <http://www.nsf/Wrequest> (visited Aug. 121 Commentaries. created in 1998. . at <http://www.worldbank. 22. implementation of the international 119 In a related development. while others did not. In the end. THE ILC AND NONSTATE ACTORS The ILC’s deliberations reveal that members were well aware of the possibility that entities other than states might invoke state responsibility.nsf> (visited Aug. C. 4. One can envisage that procedures giving nonstate actors rights to lodge complaints against states may expand to other areas of international law and to other fora. Introduction. Asian Development Bank.org/cont/evo/about. The only explicit reference to individuals and nonstate entities occurs in Article 33(2). “it may be that some procedure is available whereby that entity can invoke the responsibility on its own account and without the intermediation of any State. Inter-American Development Bank. 27.worldbank.asp> (visited Aug. .org/Ifi/ifcdes. 2. whether the Commission was too influenced by governments to draft appropriate and effective provisions on state responsibility. 55. they represent a significant advance. 123 124 Art. however noteworthy. the Commission produced articles that. An article could have confirmed that individuals and nonstate entities are entitled to invoke the responsibility of a state if the obligation breached is owed to them or an international agreement or other primary rule of international law so provides. State Responsibility and the Unmaking of International Law. did not directly address the issue of who. “There is reason to believe that the Commission’s long and laborious work on state responsibility is doing serious long-term damage to international law and international society. are to some extent out-of-date at their inception. Commentaries.”124 and do not disturb international legal rights of individuals or nonstate entities under particular treaty regimes. they are still wanting. INT’L L. They represent in a sense a small triumph for those members who wanted to take note of the role of individuals and nonstate entities in the international system. In particular.”123 This principle applies if there is an inconsistency between two provisions or the intention that one exclude the other. both to reflect existing international law and to further its progressive development. in which individuals and nonstate entities invoke state responsibility under specific international agreements or even under customary international law. But more could have been done. for they make clear for the first time that states have a right to invoke the responsibility of other states for breaches of obligations owed to the international community as a whole. the articles on invocation “operate in a residual way.816 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. the articles on state responsibility belie his assertion. 29 HARV. may invoke state responsibility. Not surprisingly. other than states. For the twenty-first century. For the twentieth century. 96:798 responsibility of a State [is] governed by special rules of international law. with the admirable goal of concluding the project expeditiously. 55.J. para. . 1. 1 (1988). It also would have been more consistent with emerging trends in modern international law to include an article that recognized that individuals or nonstate entities of one state may be entitled in certain instances to invoke the responsibility of another state if the obligation breached is owed to the international community as a whole. However. these articles are consistent with the expanding body of international practice detailed above. But by largely ignoring the growing and significant international practice in which individuals and nonstate entities are invoking state responsibility. Certainly. In 1988 Philip Allott wrote. Art. the Commission. Thus. part 3 on invoking state responsibility could have included additional provisions that recognized the widespread current practices described here. among many things.”125 Allott questioned. 125 Philip Allott.